Citation Nr: 0332648
Decision Date: 11/21/03 Archive Date: 12/01/03
DOCKET NO. 00-13 951 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for fracture of the
coccyx.
2. Evaluation of service-connected fracture of the sacrum
with post-traumatic degenerative changes and disc disease of
the thoracic and lumbar spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had active duty service from August 1950 to June
1952, and in September 1957.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas, in which the RO denied the
veteran's claim of entitlement to service connection for
fracture of the coccyx, and granted service connection for
fracture of the sacrum with post-traumatic degenerative
changes and disc disease of the thoracic and lumbar spine,
and assigned a 20 percent rating. The veteran appealed the
denial of service connection as well as the issue of
entitlement to a higher evaluation for his fracture of the
sacrum with post-traumatic degenerative changes and disc
disease of the thoracic and lumbar spine. In November 2001,
the Board remanded the claims for additional development.
In August 2001, a video conference hearing was held before
C.W. Symanski, who is the member of the Board rendering the
final determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b) (West 2002).
REMAND
The Board notes that, effective September 26, 2003, a new
regulation was promulgated concerning ratings for diseases
and injuries of the spine. See 68 Fed. Reg. 51454-51456
(August 27, 2003). Under the circumstances, the veteran's
evaluation claim is to be reviewed under the criteria most
favorable to his claim. Karnas v. Derwinski, 1 Vet. App.
308, 313 (1991); White v. Derwinski, 1 Vet. App. 519, 521
(1991). However, VA must apply the old law prior to the
effective date of the new law. See 38 U.S.C.A. § 5110(g)
(West 2002); Green v. Brown, 10 Vet. App. 111, 116-119
(1997).
The Board has determined that a remand is required. First,
there is no indication that the veteran has been adequately
notified of the new criteria, or that he has been given an
opportunity to submit evidence and argument in support of
his claim under the new regulation. Second, the veteran's
most recent examination was in September 2002, prior to the
enactment of the new regulations. As prejudice to the
veteran would result if the Board were to proceed to
adjudicate the merits of his claim, a remand is required so
that the veteran may be scheduled for another examination.
See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the
record does not adequately reveal the current state of the
claimant's disability, the fulfillment of the statutory duty
to assist requires a thorough and contemporaneous medical
examination, particularly if there is no additional medical
evidence which adequately addresses the level of impairment
of the disability since the previous examination); see also
Waddell v. Brown, 5 Vet. App. 454 (1993).
Accordingly, the Board has no alternative but to defer
further appellate consideration and this case is REMANDED to
the RO for the following actions:
1. The RO should ask the veteran to
provide the names and addresses of all
medical care providers who have provided
treatment for his spine since March 2000.
After securing any necessary releases,
the RO should obtain these records.
2. The RO should afford the veteran an
examination of his spine to determine the
current nature and severity of his
fracture of the sacrum with post-
traumatic degenerative changes and disc
disease of the thoracic and lumbar spine.
All indicated special tests and studies
should be conducted, to include range of
motion studies. The examiner should
describe in detail the presence or
absence and the extent of any functional
loss due to the veteran's service
connected spine disorder, to include the
extent of any loss of motion. In
particular, the examiner should be asked
to determine whether the veteran's spine
exhibits weakened movement, excess
fatigability, or incoordination, and if
feasible, these determinations should be
expressed in terms of the degree of
additional range of motion loss or
ankylosis due to any weakened movement,
excess fatigability, or incoordination.
The examiner should also provide an
opinion as to whether pain could
significantly limit functional ability
during flare-ups or when the spine is
used repeatedly over a period of time.
This determination should also, if
feasible, be portrayed in terms of the
degree of additional range of motion loss
or ankylosis due to pain on use or during
flare-ups. The examiner should indicate
whether any pain claimed by the veteran
is supported by adequate pathology and is
evidenced by his visible behavior. The
examiner should also provide an opinion
as to whether the veteran has a fracture
of the coccyx. All opinions expressed
should be supported by appropriate
evidence and rationale.
3. Thereafter, the RO should
readjudicate the issues on appeal. If
either of the determinations remains
unfavorable to the veteran, he should be
provided with a supplemental statement of
the case (SSOC) that addresses all
relevant actions taken on the claims for
benefits, to include a summary of the
evidence and applicable law and
regulations considered. The veteran
should be given an opportunity to respond
to the SSOC.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).